R v Glen Malcolm Porritt - [2008] ACTSC 33

R v GLEN MALCOLM PORRITT
[2008] ACTSC 33 (22 April 2008)

CRIMINAL LAW – trial by judge alone – murder – mens rea – when a verdict of guilty of manslaughter (unlawful homicide) may be returned – unlawful and dangerous act – criminal negligence

Supreme Court Act 1933 (ACT), s 68C
Crimes Act 1900 (ACT), ss 12, 13, 14, 15

Brown v R (1913) 17 CLR 570
Packett v R (1937) 58 CLR 190
Gammage v R (1969) 122 CLR 444
Wilson v R (1992) 174 CLR 313
Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645
R v Lavender (2005) 222 CLR 67

No. SCC 56 of 2007

Judge: Higgins CJ
Supreme Court of the ACT

Date: 22 April 2008

IN THE SUPREME COURT OF THE  )
  )  No. SCC 56 of 2007
AUSTRALIAN CAPITAL TERRITORY  )

R

v

GLEN MALCOLM PORRITT

ORDER

Judge:  Higgins CJ
Date:  22 April 2008
Place:  Canberra

THE COURT ORDERS THAT:

The accused is not guilty of the offence charged that on 21 December 2005 at Canberra in the Australian Capital Territory he murdered Nanette Mary Porritt but is guilty of the unlawful homicide of the said Nanette Mary Porritt at the time and place aforesaid.

The accused, Glen Malcolm Porritt, now aged 23 years, stood trial before me, between 4 February 2008 and 12 February 2008, on an indictment containing one count, namely, that he:

… on … 21 December 2005 at Canberra in the Australian Capital Territory … murdered Nanette Mary Porritt.

Upon his arraignment the accused has pleaded not guilty. He elected for trial by judge alone thus engaging the provisions of s 68C of the Supreme Court Act 1933 (ACT). That section provides:

(1)A judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and any such finding has, for all purposes, the same effect as a verdict of a jury.
(2)The judgment in criminal proceedings tried by a judge alone shall include the principles of law applied by the judge and the findings of fact on which the judge relied.

The offence alleged engages s 12 of the Crimes Act 1900 (ACT) (the Crimes Act). That section provides:

(1)A person commits murder if he or she causes the death of another person –
(a) intending to cause the death of any person; or
(b) with reckless indifference to the probability of causing the death of any person.
(2)A person who commits murder is guilty of an offence punishable, on conviction, by imprisonment for life.

By virtue of s 13 of the Crimes Act, if the accused would otherwise be guilty of murder, but it appears that the act or omission causing death occurred under provocation then a verdict of guilty of manslaughter may be returned.

Mr Harris SC, for the accused, does not submit that such a finding could be made in this case.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] ACTSC 33
Decision Date: 22 April 2008

CaseChat Overview and Summary

The case of R v Glen Malcolm Porritt involved the accused, Glen Malcolm Porritt, standing trial for the murder of his wife, Nanette Mary Porritt, on 21 December 2005 in Canberra, Australian Capital Territory. The case was heard by a judge alone in the Supreme Court of the Australian Capital Territory. The key issue before the court was to determine whether the accused was guilty of murder or manslaughter, specifically whether there was sufficient evidence to establish the requisite mens rea for murder, or if the lesser charge of unlawful homicide, specifically manslaughter by an unlawful and dangerous act or through criminal negligence, was more appropriate.

The court examined the evidence to ascertain if the accused acted with intent to kill or cause grievous bodily harm, which is necessary for a murder conviction. The court also considered whether the accused’s actions were so reckless that they amounted to criminal negligence, which would support a manslaughter conviction. Ultimately, the court concluded that while there was clear evidence of unlawful homicide, there was insufficient evidence to establish that the accused acted with the necessary intent to murder. Instead, the court found that the accused’s actions could be characterised as an unlawful and dangerous act that resulted in the death of the victim.

The reasoning of the court was that the accused’s actions, though reckless and resulting in death, did not meet the threshold of intent required for a murder conviction. The court found that the accused’s actions were reckless but not with the specific intent to kill or cause grievous bodily harm. Consequently, the court found the accused guilty of the unlawful homicide of Nanette Mary Porritt but not guilty of the murder charge. The final orders of the court were that the accused was acquitted of the charge of murder but found guilty of the unlawful homicide of Nanette Mary Porritt.

Orders

Orders of the court

The accused is not guilty of the offence charged that on 21 December 2005 at Canberra in the Australian Capital Territory he murdered Nanette Mary Porritt but is guilty of the unlawful homicide of the said Nanette Mary Porritt at the time and place aforesaid.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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